This article is part of a series on the Family Court which can be viewed here>>
THE FAMILY COURT needs an overhaul – that was the opinion of the former Justice Minister Alan Shatter last year when he announced that a referendum would be held to establish a dedicated Family Court structure.
Fast forward one year and the Department of Justice said that a referendum is no longer necessary and that it believes it can bring it in through legislation alone.
All this week TheJournal.ie brought you case stories from inside the family courts around the country. One observation from days spent at the courts is the sheer number of cases appearing before judges on a daily basis – sometimes up to 50 or 60 cases appear on the call over sheets in the morning.
Government commitment
The Programme for Government states that it is committed to introducing a Constitutional Amendment to “allow for the establishment of a distinct and separate system of family courts to streamline family law court processes and make them more efficient and less costly”.
Even though the constitutional amendment is no longer necessary, the changes still are.
Currently, there are three courts — district, circuit, and high court — each dealing with separate family issues, ranging from custody, maintenance, barring orders, access issues to child abductions. There is no dedicated family court division and there is much overlap.
‘Urgent change’
In 2013, Shatter said “urgent change” is necessary, stating that the current structure is “far from ideal” and that the system had “not greatly improved” since the the Law Reform Commission made these comments in its report on Family Courts in 1996:
The courts are buckling under the pressure of business. Long family law lists, delays, brief hearings, inadequate facilities and over-hasty settlements are too often the order of the day. At the same time, too many cases are coming before the courts which are unripe for hearing, or in which earlier non-legal intervention might have led to agreement and the avoidance of courtroom conflict. Judges dealing with family disputes do not always have the necessary experience or aptitude. There is no proper system of case management…
Last year, Shatter recommended that a two-tier court comprising of a lower and higher Family Court, staffed with dedicated judiciary, specialised and expert in family law be implemented.
Shatter acknowledged that this was a “controversial” proposal:
There are few who have experience of family law hearings who would
argue that every party in a family law case is always dealt with in a satisfactory and sensitive manner by all members of the judiciary. Just because a person has been a solicitor or a member of the Bar in practice for the minimum 10 years required to be appointed as a judge it does not mean that he or she has necessarily amassed the insight, qualities and expertise necessary to deal with all cases.
Specialised training for judges needed
He said family breakdown and parenting disputes are particularly sensitive and painful areas that require completely different skills from those required to hear a criminal trial or adjudicate in civil and commercial matters.
“The temperament and common sense of judges sitting in the new family court will be as crucial as their fund of legal knowledge,” he said.
Catherine Ghent of Gallagher Shatter Solicitors told TheJournal.ie that specialised training is something that judges in family courts should receive, adding that it is prerequisite for judges dealing with criminal cases involving children, so it should also be the case in family law.
She also said that a judicial oversight review board should be established in terms of assessing conduct, stating that there are some legitimate concerns about the outcomes of some cases.”If things are investigated, the ruling might be upheld,” she said, but added that this oversight board, as well the media reporting on family court cases will increase the public’s confidence in the court system, which many believe is shrouded in secrecy.
There have been calls that the courts should be “less adversarial” with a vision that appeals could be made to the higher court or perhaps another arm of the family court system.
At present an appeal from a family law matter initially dealt with in the District Court involves a full rehearing in the Circuit Court. It was recommended that, in future, family court appeals would be based on transcripts which would reduce delays and costs.
Court facilities
The facilities of the family courts is another sticking point for many working in the system. Most District Courts have family law days, which a layperson might question what the issue is?
However, imagine you are in applying for a for a barring order against your husband or wife who beat you last night, and he or she is across the foyer, or that you are in a custody battle and you have no where to place your children for the day as you have no idea when your case will be called and the kids are left sitting on the reception floor for hours.
Family law cases are special as they involve young people, which is why some argue that separate venues, that are more child-friendly, that have adequate private consultation rooms and a co-located welfare and assessment services available as well as in-court mediation facilities should be available.
It was flagged that a special court was to be constructed for the Family Court, similar to that of the Central Criminal Court, but a spokesperson for the Department of Justice said that the location of the new courts is yet to be considered.
‘Totally inadequate’
Ghent told TheJournal.ie that new facilities were a necessity, stating that the main Family Court in Dublin, Dolphin House, is “totally inadequate and inappropriate for its purpose”.
“The building is simply not suitable for family law. There are no proper waiting rooms or consultation rooms, children who are there with their parents all day are left to sit on the floor and peoples’ privacy is being breached due to the facilities as clients have to discuss their business in the corridor.”
Court closures
She criticised the closure of regional courts, such as Dún Laoghaire, where family court cases are heard. Under changes implemented by the Courts Services, families will now have to travel to Dublin to have their case heard.
“This is a retrograde step,” said Ghent, adding that Dolphin House is already struggling to cope with the sheer number of cases coming through the door, so with the additional cases being transferred to Dublin, it could reach breaking point.
“What people forget about family law is that it is not like any other division of law, it is about families, meaning mothers and fathers often have no where to leave their children when they attend court and must take them with them.
“Not to mention the additional cost for families having to travel into the city centre. All these are practical things that impact on families and make the experience that more stressful.
“When it makes it difficult for people to access the justice system, that is when the service is not being provided properly,” she said.
Speaking about the Family Court process, the outgoing Ombudsman for Children said that other systems in other countries should be looking at adding that the Irish system can be very stressful for both children and families.
Can’t see the video, click here>>>
Mandatory mediation
The Minister for Justice Frances Fitzgerald seems eager to push on with one issue – the use of mediation, prior to cases presenting to the court.
She commended the “Dolphin House Initiative” where mediation services are available at the court and welcomed that the initiative has been extended to other locations in Cork, Nenagh and Naas.
She also welcomed that mandatory mediation for applicants for legal services in Cork, on a pilot basis, had been introduced, adding that it is her intention to provide a statutory framework with the Mediation Bill to move away from a “litigation first” approach to resolving family law disputes.
Dr Roisin O’Shea, an Irish Research Council Scholar and Senior Partner in Arc Mediation, who conducted a substantial piece of research on the Family Court said she is in favour of mandatory mediation, while solicitor Kathy Irwin says she is not totally in favour of “forced mandatory mediation” but said an increase in its use was positive.
Pressure on the system
The pressure on the courts system has a big impact on families as well as having a knock-on effect on other sectors.
A lot of people complain that there aren’t enough court hearings. A client can find that their case is scheduled to be heard, but on the day it does not get reached, meaning they wait around all day. The next time the court will deal with it is months down the line.
The professionals that are involved in cases are also affected. Social workers must appear in court to swear in their report on a case. There is no set time for the cases to be heard, so social workers sometimes have to wait full days for their case to be heard.
Head of Services at the Irish Foster Care Association (IFCA) Breda O’Donavan, said that social workers are already stretched and that time spent in court giving evidence could be spent on the ground doing social work with children, some of whom have not been allocated a social worker at all.
Solicitor Wesley Hudson of Hudson Solicitors in Dun Laoghaire acknowledged that this is an issue and questioned whether there could be a better method used so that there is no time wasting, but he said that is the way the family courts operates: “It can be a long waiting game.”
The caseload is also reported to be having a huge impact on resources of the Free Legal Aid Board, which provides legal advice and representation to those that can not fund it. A source said that on some occassions, solicitors were given so many cases that it was difficult to have time to be directed by all their clients in time for the hearing. This is in turn holds up the courts when a case is heard and the solicitor has yet to take instruction from their client and can therefore not proceed with the case. This is just another clog in the system putting pressure of the family courts.
Legislation publication
The Family Court structure which has remained largely unchanged since 1924. A statement from the Department of Justice to TheJournal.ie stated that in order to bring in central reforms committed to by the Government the necessary legislative measures will have to be introduced “to deal with all relevant family law matters including the functions and jurisdiction of the family court”.
“It is intended that an outline of the necessary legislation will be published before the end of 2014.”
The department said it aims to publish a general scheme for the Family Law Courts Bill in the autumn, (now) and enacting the Bill in the first half of 2015. With the Law Reform recommendations for change being made over 18 years ago, swift action by Government should be taken sooner rather than later.
To embed this post, copy the code below on your site
have your say